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You are here: BAILII >> Databases >> European Court of Human Rights >> X. v. THE FEDERAL REPUBLIC OF GERMANY - 2840/66 [1969] ECHR 4 (19 December 1969)
URL: http://www.bailii.org/eu/cases/ECHR/1969/2840_66.html
Cite as: [1969] ECHR 4
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X. v. THE FEDERAL REPUBLIC OF GERMANY - 2840/66 [1969] ECHR 4 (19 December 1969)
THE FACTS Whereas the facts of the case may be summarised as follows. The applicant is a German citizen, born in 1934 in Rumania, and at present detained in prison in Hanover. He has several previous convictions. On 29th March, 1966, he lodged with the Commission an application under Article 25 of the Convention which was registered, on 7th July, 1966, under file No. 2840/66. In this application, the applicant complained in substance of the situation set out below. On 10th July, 1967, the Commission decided to strike the application off he list on the ground that the applicant had shown no interest in its maintenance. In fact, the applicant had last written to the Commission on 9th January, 1967, and there had been no further correspondence from him since that time. Efforts on the part of the Commission's Secretary to obtain further information from him as to his complaints had failed, a letter of 6th April, 1967, sent to the prison at Kassel where the applicant was then detained, having been returned with the remark on the letter: "inconnu" - "unbekannt". The Commission further found that there appeared to be no reasons of a general character affecting the observance of the Convention which would necessitate a further examination of his case. By letter of 22nd July, 1968, the applicant addressed himself again to the Commission. The letter was sent from prison in Hanover and contained further requests for assistance. In a further letter of 24th September, 1968, the applicant made further complaints concerning the criminal proceedings against him in Kassel supplementing his previous submissions with regard to both the facts and his allegations as to violations of the Convention. He also indicated his interest to pursue his previous application and requested the Commission to deal with the merits of his case and to examine in particular the consistency with the provisions of the Convention of certain new complaints relating to his detention in Hanover. The facts as they have now been presented by the applicant may be summarised as follows: From his statements and from documents submitted by him, it appears that, on 16th October, 1965, he was arrested on suspicion of having committed theft and illegally possessing firearms, and remanded in custody. On 4th January, 1966, he was indicated on these charges and by decision (Beschluss) of .. February, 1966, proceedings were opened against the applicant before the Regional Court (Landgericht) at Kassel. By the same decision, the Regional Court decided that his detention on remand should continue for the reasons indicated in the Court's decision of .. January, 1966. On .. March, 1966, the applicant was convicted by the First High Criminal Chamber of the Regional Court (1. grosse Strafkammer des Landgerichts) on the charges of having committed aggravated theft, as being a recidivist and in conjunction with others (gemeinschaftlicher schwerer Diebstahl im Rückfall) and of receiving stolen goods (Hehlerei) in conjunction with illegally possessing firearms. He was sentenced to a total of 25 months' penal servitude (Zuchthaus). In the grounds of the decision, the Court stated that the applicant's guilt with regard to the theft charge was established beyond any reasonable doubt (mit an Sicherheit grenzender Wahrscheinlichkeit). The applicant lodged an appeal (Revision) against this decision with the Federal Court (Bundesgerichtshof). By decision (Urteil) of .. October, 1966, the Federal Court quashed the conviction insofar as it related to the charge of having committed aggravated theft, as being a recidivist and in conjunction with others and set aside the sentence. The Court considered that it was sufficient only to be convicted of the applicant's guilt "beyond any reasonable doubt", but that the trial court had to be certain or otherwise acquit the accused for lack of evidence in accordance with the principle: in dubio pro reo. It sent the case back to the Regional Court at Kassel for further hearing and decision. It appears that the proceedings before the Regional Court at Kassel, insofar as they had been sent back to the said Court for further hearing and decision, were provisionally discontinued on .. August, 1968, in accordance with Article 154, paragraph 2 of the Code of Criminal Procedure. The Court held that, in view of the fact that, on .. August, 1968, the applicant had been convicted by the District Court (Schöffengericht) of Hanover and sentenced to two and a half years' imprisonment, it was no longer necessary to determine the theft charge against the applicant and to sentence him for that offence. It further appears that the applicant expected two judges of the Regional Court at Kassel to have been biased. It appears that the applicant had come to this conclusion by virtue of the fact that both judges had ordered his continued detention on remand by decision of .. October, 1966, on the ground that the danger of flight persisted, the applicant having to expect a sentence which exceeded by far the period of his detention on remand. Consequently, on 14th December, 1966, he lodged applications with the Regional Court at Kassel challenging the presiding judge and one associate judge of that Court. His applications were rejected by the Regional Court at Kassel on .. December, 1966, as being ill-founded. It appears that the applicant was also dissatisfied with the conditions and his treatment in the prison where he was detained on remand. In his letters of 18th April, 1966 and 29th June, 1966, to the Attorney-General (Generalstaatsanwalt) at Frankfurt/Main the applicant complained that certain sanitary installations in his cell were inadequate, that his cell was cleaned only once a week, that a prison guard, on one occasion, had treated him arbitrarily, that wireless earphones were installed in the cells, instead of toilets which would have been more useful, that a letter to the Commission was delayed because he had stamps in his possession, that another prisoner was put in his cell who was suffering from a venereal disease and that the prison authorities rejected his request to remove this man from his cell. He further complained that he had been required to strip naked in front of three prison guards, that subsequently he was placed in solitary confinement, and , finally, that his previous complaint of the conditions in prison to the Attorney-General was held back. These complaints were referred to the Director of the Prison at Kassel (Direktor der Straf- und Untersuchungshaftanstalt Kassel) who, by letter of 18th July, 1966, replied to each of the points raised by the applicant indicating that certain complaints relating to sanitary conditions had, in the meanwhile, been remedied, and that other allegations were either ill-founded or untrue. The applicant now complains: - that he was wrongfully detained on remand; - that he was wrongfully convicted and sentenced; - that the proceedings concerned were unlawful in that - he was subjected to degrading treatment and insulted by the Court; he was unable to understand the statements made by the Public Prosecutor (Staatsanwalt) in court because he spoke a Saxon dialect; - that he was subjected to degrading and inhuman treatment in prison. He also complains that he was wrongfully detained during a period of 15 months and eight days. In this respect, he explains that the separate sentence for theft which had been imposed on him by the Kassel Regional Court on .. March, 1966, had amounted to two years' penal servitude. The separate sentence for receiving stolen goods had been fixed at four months' penal servitude. The conviction on that theft charge had been quashed and subsequently the prosecution thereof had been discontinued. Since, however, he had been detained from 16th October, 1965 to 24th January, 1967, his detention on remand during that period had been unlawful insofar as it exceeded four months. The applicant alleges generally violations of the Convention and also claims compensation for his wrongful detention during the proceedings before the courts at Kassel. THE LAW Whereas, the Commission first considered the question whether or not the applicant was entitled to a reopening of his case and an examination by the Commission of the admissibility of his application; Whereas the Commission had regard to its jurisprudence establishing that the Convention does not provide means for such reopening, either by the Commission or on appeal to another body, where the application has been declared inadmissible in accordance with the provisions of Article 27 (Art. 27) of the Convention (see Application No. 3806/68, Collection of Decisions, Vol. 27, pages 139, 142); Whereas the Commission finds that the above jurisprudence does not apply to applications which have been struck off the list on the ground that the applicant failed to show an interest in its maintenance; Whereas in such cases, the Commission also satisfies itself that there are no reasons of a general character affecting the observance of the Convention which would necessitate a further examination of the applicant's complaints; Whereas the Commission finds that an applicant may have his application restored to the Commission's lists of cases where the circumstances of the case as a whole so justify such restoration; Whereas, in the present case, the applicant, by letter of 24th September, 1968, indicated that he was, in fact, still interested in the Commission's examination of his application; whereas the Commission finds that, in the circumstances, his application should be restored to its list of cases; Whereas the Commission next examined the admissibility of the application; Whereas, in regard to the applicant's complaint that he was unlawfully detained during a period of fifteen months and eight days, it is to be observed that, under Article 26 (Art. 26) of the Convention, the Commission may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law; and whereas the applicant failed to show that he raised this complaint before the Federal Constitutional Court invoking Article 104 of the Basic Law; whereas, therefore, he has not exhausted the remedies available to him under German law; Whereas, in regard to the applicant's complaint relating to the length of his detention on remand during the proceedings against him at Kassel, it is again to be observed that, under Article 26 (Art. 26) of the Convention, the Commission may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law; and whereas the applicant equally failed to show that he raised this complaint before the Federal Constitutional Court; Whereas, therefore, he has again not exhausted the remedies available to him under German law; Whereas, moreover, an examination of the case as it has been submitted, including an examination made ex officio does not disclose the existence of any special circumstances which might have absolved the applicant, according to the generally recognised rules of international law, from exhausting in either case the domestic remedies at his disposal; Whereas, therefore, the condition as to the exhaustion of domestic remedies laid down in Articles 26 and 27, paragraph (3) (Art. 26, 27-3) of the Convention has not been complied with by the applicant in respect of either of these complaints; Whereas, in regard to the applicant's complaints relating to his conviction and sentence for receiving stolen goods, an examination of the case as it has been submitted, including an examination made ex officio, does not disclose any appearance of a violation of the rights and freedoms set forth in the Convention and especially in the Articles invoked by the applicant; whereas, in respect of the judicial decisions complained of, the Commission has frequently stated that in accordance with Article 19 (Art. 19) of the Convention its only task is to ensure observance of the obligations undertaken by the Parties in the Convention; whereas, in particular, it is not competent to deal with an application alleging that errors of law of fact have been committed by domestic courts, except where the Commission considers that such errors might have involved a possible violation of any of the rights and freedoms limitatively listed in the Convention; whereas in this respect, the Commission refers to its decisions Nos. 458/59 (X. v. Belgium - Yearbook, Vol. III, p. 233) and 1140/61 (X. v. Austria - Collection of Decisions, Vol. 8, p. 57); and whereas there is no appearance of any such violation in the present case; whereas it follows that this part of the application is manifestly ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention; Whereas, in regard to the applicant's complaints relating to his conviction and sentence for theft, as well as to the court proceedings concerned, the Commission observes that his conviction and sentence for that offence has been set aside by decision of the Federal Court, dated 5th October, 1966; and by virtue of the Kassel Regional Court's decision of 22nd August, 1968; whereas, consequently, the Commission finds that the applicant is not a victim in this respect of a violation by the Federal Republic of Germany of the rights and freedoms set forth in the Convention; whereas it follows that this part of the application is also manifestly ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention; Whereas the applicant further complains of the conditions in prison at Kassel; whereas the Commission has already stated that, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law; and whereas the applicant failed to show that he pursued his complaints before the competent German courts or authorities; whereas, therefore, he had not exhausted the remedies available to him under German law; whereas, moreover, an examination of the case as it has been submitted, including an examination made ex officio, does not disclose the existence of any special circumstances which might have absolved the applicant, according to the generally recognised rules of international law, from exhausting the domestic remedies at his disposal; whereas, therefore, the condition as to the exhaustion of domestic remedies laid down in Articles 26 and 27, paragraph (3) (Art. 26, 27-3) of the Convention has not been complied with by the applicant; Whereas, in any event, in regard to the above complaint, an examination of the case as it has been submitted, including an examination ex officio, does not disclose any appearance of a violation of the rights and freedoms set forth in the Convention; whereas it follows that this part of the application is also manifestly ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention; Now, therefore the Commission 1. decides to restore this application to the list 2. declares this application inadmissible.